Congress Becomes Madison's "Overbearing Majority"

Unmoored from the American people.

Jean Kaufman

Congress has always had its flaws. All too often, the road to the enactment of legislation has been fraught with corruption, stupidity, threats, bribes, and other sordid practices.

But as bad as that is, what transpired during the passage of health care reform was different and even worse. The process by which this bill was passed didn’t just feature corruption and violate traditional ethics. It revealed a president and a congressional leadership that in concert have shown more callous contempt than any in history for the will of the American people, the safeguards against the tyranny of the majority built into the Constitution, and the parliamentary rules by which Congress operates. And there’s every indication that, if need be, the same will be true of cap and trade, immigration reform, or whatever else Obama, Pelosi, and Reid may deem the next morsel they plan to cram down the recalcitrant throat of the American public.

It is this stench of tyranny on the part of Congress that is very new and very noticeable, even to ordinary Americans who usually don’t pay a particle of attention to the arcane rules of the House and Senate. But they have been paying attention recently—although in his March 17 interview with Brett Baier, Obama glossed over that fact, and disturbingly claimed that he himself does not “worry” about those procedural rules. But as a lawyer not altogether unfamiliar with the Constitution, he must know that it is exactly those rules that are vital and instrumental in guaranteeing our liberties.

Protecting liberty does not, however, appear to be quite what Obama and the present Democratic leaders are after. Perhaps for the first time in our history, members of Congress from the majority party are acting as though they have largely become unmoored from the need to answer to the American people in general and even to their own constituents in particular.

This sort of overreach was always a possibility—and one the framers foresaw, even if they could not predict the exact details under which it would come to pass. In Federalist Paper No. 10, James Madison wrote presciently about “the violence of factions” as follows:

…[M]easures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority…By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community…

But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society…It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm…

Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people…

One cannot read that today without experiencing the cold chill of recognition; we have experienced what he describes. Later in the paper, Madison also specifically mentions the desire for “an equal division of property” as something to be on guard against.

But as brilliant as the Founding Fathers were, the system they designed wasn’t and isn’t perfect—as they in their wisdom knew it could not possibly be. It is always especially threatened when there is undivided government; when one party gains huge majorities in both houses, especially when that same party controls the presidency, as it does now. In the past, under such circumstances we have relied on the integrity of our legislators (never a good bet), as well as their desire to retain power and be reelected (a much safer one). That latter motivation—self-interest—has tended to keep the tendency towards tyranny of the “overbearing majority” at least somewhat in check.

But now we have reached a critical point, the signs of which are apparent:

(1) Never before have we seen such a drive to pass a profoundly unpopular bill.

(2) Never before has a bill been passed when it has immediately afterward become clear that the best way for candidates to win an election, or to gain traction in the polls, is to say that they will work tirelessly to repeal that bill.

(3) Never before have a party and a president so publicly and boldly discounted the very idea that procedures in the legislature matter.

And all of this for a bill that no one seems to like very much. The purpose of this bill is—as Pelosi put it—to “kick through this door” to prepare the way for even further “reform.” But what does this metaphor even suggest? Who kicks through doors, anyway? It is ordinarily the police—or even the secret police. Not a constitutional legislative body of the United States of America.

Pelosi’s phrase was profoundly aggressive, although perhaps she used it without complete consciousness of what she might be conveying. But it was no accident. This is an extraordinary way for a speaker of the House to talk, congruent with the Democratic Party’s newly combative attitude towards the wishes of the American people. This approach is (to use one of Obama’s favorite words) unprecedented for a major political party—at least in this country.

Jean Kaufman is a writer with degrees in law and family therapy, who blogs at neo-neocon.